1 United States Court of A ppeals

Fifth Circuit



## FILED

June 24, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-11186

GEORGE ALARICK JONES,

Petitioner-Appellant,

versus

DOUG DRETKE, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

_________

Appeal from the United States District Court

For the Northern District of Texas

(No. 3:00-CV-2352-G)

_________

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

I. Facts and Proceedings

Pet itioner George Alarick Jones was convicted of capital murder in Texas and sent enced

to death. The Texas Court of Criminal Appeals affirmed the conviction and sent ence, J ones v.

State

, 982 S.W.2d 386 (Tex. Crim. App. 1998), and the United States Supre m e Court denied

certiorari. J

ones v. Texas

, 528 U .S. 985 (1999). After Jones’s petition for state post-conviction

relief was denied

, Ex parte Jones , No. 45,979-01 (Tex. Crim. App. Sept. 13, 2000) (per curiam)2

(unpublished), he applied for a writ of habeas corpus pursuant to 28 U .S.C. § 2254 in the Uni ted

States District Court for the Northern District of Texas. J ones v. Cockrell

, No. 3-00-CV-2352-G

(N.D. Tex. July 23, 2003). The district court denied the petition, but later granted Jones a

Certificate of Appealability (“COA”) on two issues: 1) whethe r t he trial court’s removal of a

venire member for cause violated Jones’s rights under the Sixth or Fourteenth Amendment s; and

2) whether the trial court’s refusal to instruct or voir dire the jury about paro le eligibility

impinged upon Jones’s Eighth or Fourteenth Amendment rights. Jones now presents these two

issues on appeal.

II. Standard of Review

Our standard of review in federal habeas proceedings is governed b y t he Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), which provides:

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with r espect to any

claim that was adjudicated on the merits in State court proceedings un less the

adjudication of the claim—

(1) resulted in a decision that was contra ry to, or involved an

u nreasonable application of, clearly established Federal law , as

determined by the Supreme Court of the United States; . . . .

28 U.S.C. § 2254(d) (emphasis added). The Supreme Court, interpret ing § 2254(d)(1), held that

“a state-court decision is

. . . contrary to this Court’s precedent if the state court confronts facts

that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a

result opposite to ours.” W illiams v. Taylor , 529 U.S. 362, 405 (2000). In order to find that a

state adjudication is objectively unreasonable, “the stat e co urt’s application [of federal law] must1 Article 35.16(b)(3) provides that the State may challenge for cause those venire

members who “ha[ve] a bias or prejudice against any phase of the law upon which the

State is entitled to rely for conviction or punishment.”

3 be more than merely incorrect.” R obertson v. Cockrell, 325 F.3d 243, 248 (5th Cir. 2003) (en

banc).

III. Analysis

A. Removal of venire member for cause

Jones contends that the trial court violated his Sixth and Fourteenth Amendment rights by

erroneously gr ant ing t he State’s motion to strike a venire member for cause. During voir dire, the

prosecution asked venire member Margaret Snyder about her views on accomplice testimo n y.

Snyder stated that she “would probably be a little more skeptical” of an accomplice witness, but

maintained that her evaluation of the testimony “wo uld come down to whether or not [she]

believed the individual [accomplice] or not.” Snyder made similar statements when questioned

by defense counsel and the trial court. The State, citing Article 35.16(b)(3) of the Texas Code o f

Criminal Procedure, 1 then moved t he t rial court to strike Snyder from the venire panel. Over

Jones’s objection, the court granted the State’s motio n and removed Snyder. Jones now claims

that his subsequent convictio n sho uld be reversed on the grounds that the removal of Snyder

violated his Sixth Amendment right to an impartial trial, and contravened the “fundamental

fairness” guarantee of the Fourteenth Amendment’s Due Process Clause.

(1) Procedural bars

The Director of the Texas Department of Criminal Justice (“Dir ector”) asserts that Jones’s

claims challenging the removal of Snyder are procedurally barred pursuant to 28 U.S.C. §

2254(b)(1)(A). Section 2254(b)(1)(A) precludes federal habeas relief unless “the applicant has2 The court found that Snyder was a suitable juror, explaining that “once the legal

definition of ‘reasonable doubt’ was explained to her, Snyder was unwavering in stating

that she would follow the law and hold the State only to that standard at both stages of

the trial.” Jones , 982 S.W.2d at 390.

4 exhausted the remedies available in the court s of t he State.” Whether a federal habeas petitioner

has exhausted state-court remedies is a question of law. S ee Wilder v. Cockr ell , 274 F.3d 255,

259 (5th Ci

r. 2001). The exhaustion requirement is satisfied when the substance of the habeas

cl aim has been fairly presented to the highest state court. S ee id. (citing Picard v.Connor

, 404

U.S. 270, 275-76 (1971)). T he presentation requirement, however, is excused “when a state court

with the authority to make final adjudications undertook to decide the cla im o n its merits sua

sponte .” R A NDY H ERTZ & J AMES S. L IEBMAN

, F EDERAL H ABEAS C ORPUS P RACTICE AND

P ROCEDURE § 23.3a (4th ed. 1998) (citing Walton v. Caspari

, 916 F.2d 1352, 1356-57 (8th Cir.

1990); Sandstrom v. Butterw orth , 738 F.2d 1200, 1206 (11th Cir. 1984)). Such an exception

makes sense in light of § 2254(b)(1)(A)’s long-recognized policy “to give the State an init ial

opportuni ty t o pass upon and correct alleged violations of its prisoners’ federal rights.” P icard,

404 U.S. at 275 ; Wilder , 274 F.3d at 260.

Jones did not, in either his direct appeal or his petition for state post-c o nvict io n relief,

claim that the removal of Snyder violated his rights under the Sixth or Fourteenth Amendments.

Rather, Jones argued that Snyder’s dismissal was not justified by Article 35.16(b )(3) of the Texas

Code of Criminal Procedure. Importantly, such violations warrant reversal only if they are

reversible constitutional error. T EX

. R. A PP

. P ROC . 44.2(a).

The Texas Court of Criminal Appeal s, o n direct review, held that the trial court did indeed

misapply Article 35.16(b)(3). 2 J ones , 982 S.W.2d at 390-91. But the majority court found that

the violation did not demand a reversal of Jones’s c onvict ion, reasoning s ua sponte that the3 A dissenting opinion in Jones’s direct appeal contends that the removal of

Snyder violated principles of “fundamental fairness” as guaranteed by the Fourteenth

Amendment. Jones , 982 S.W.2d at 396 n.4 (Baird, J., dissenting). A dissenting judge’s

reference to a claim, which is ignored by the litigants and the court’s majority, does not

by itself satisfy the requirements of exhaustion. As stated above, courts have created an

exception to the presentation requirement when the unpresented issue is resolved sua

sponte by the court. Under those circumstances, it is beyond doubt that the court had an

“initial opportunity to pass upon and correct alleged violations of its prisoners’ federal

rights.” Picard, 404 U.S. at 275 ; Wilder , 274 F.3d at 260. When a claim is merely

addressed by a dissenting judge, as in the case sub judice , we have no such assurance that

the court enjoyed this “initial opportunity.”

5 removal of Snyder did not impinge upon Jones’s Sixth Amendment right to an impartial trial. I d.

at 391. Although Jones did not adequately present his Sixth Amendment claim, we find that state

remedies related to t his claim were nonetheless exhausted because the Texas Court of Criminal

Appeals “undertook to decide it o n t he merits.” The majority opinion, however, did not at any

point reference whether the dismissal of Snyder contrav ened t he “fundamental fairness”

guarantee of the Due Process Clause. As a result, Jones’s Fourteenth Amendment claim relating

to the removal of Snyder is procedurally barred by § 2254(b)(1)(A). 3

(2) Merits of the Sixth Amendment claim

The Director fully acknowle dges t hat t he trial court’s removal of Snyder was not

permit t ed by Article 35.16 of the Texas Code of Criminal Procedure. The narrow issue before

this Court, however, is whether the state court’s adjudication—that t his violation did not

constitute reversible erro r under the Sixth Amendment—was an objectively unreasonable

application of clearly established federal law. We hold that it was not.

As a gener al rule, a trial court’s erroneous venire rulings do not constitute reversible

co nst itutional error “so long as the jury that sits is impartial.” United States v. Martinez-S alazar

,

528 U.S. 304, 313 (2000) (quoting Ross v. Oklahoma

, 487 U.S. 81, 88 (1988)) ; see also United6

States v. Prati

, 861 F.2d 82, 87 (5th Cir. 1988) (“Only in very limited circumstances . . . will such

an uni nt ent io nal mistake warrant reversal of a conviction.”). The Supreme Court, in G ray v.

Mississippi

, 481 U.S. 648 (1987), enunciated a limit ed exception to this general rule. The Gray

Court found reversible error where a trial court had excused a po t ent ial juror for cause in a capital

case based on her opposition to the death penalty even t ho ugh her views would not have

prevented or substantially impaired her abilit y to perform as a juror. I d. at 665, 668 (citing

Wainw right v. Witt , 469 U.S. 412, 416 (1985); Witherspoon v. Illinois , 391 U.S. 510, 521 (1968)).

Gray applies a broad sta ndard o f harm, stating that the “relevant inquiry is whether the

composition of the jury pan el as a w hole c ould possibly have been affected by the trial court’s

error.” 481 U.S. at 665 (internal quotations omitted).

Jones contends that the trial court’s removal of Snyder constitutes reversible error under

the standard set forth in G ray

. The Supreme Court, however, one year after the G ray decision,

stated:

We decline to exten d the rul e of G ray beyond its context: the erroneous

“ Witherspoon exclusion” o f a qualified juror in a capital case. We think the broad

language used by the Gray Court is t o o sweeping to be applied lit erally, and is

best understood in the context of the facts there involved.

Ross

, 487 U.S. at 87-88 (internal cit at ion omitted). In light of R oss

, this Circuit recognizes the

narrow applicability of Gray

. United States v. Prati , 861 F.2d 82 (5th Cir. 1988) (Wisdom, J.).

In Prati

, this Court found that the legal effect of an erroneous g rant o f a prosecution’s challenge

for cause is to “provide the government with an extra pere mpt o ry challenge.” Id. at 87. The

Court then recognized that, except for Witherspoo n violations, which were at issue in G ray

,

“Ross v. Oklahoma

. . . sets forth the standard by which we determine the impact of an increase or

decrease in the number of a par t y’s peremptory challenges as a result of a court’s erroneous ruling7

on a challenge for cause.” I d .; see also id. n.16 (explaining that the R oss standard does not

govern Witherspoon challenges). Because Jo nes’s claim is not founded in W itherspoon

, we

employ the analysis set forth in R oss : whether the jurors that actually sat were impartial as

required by the Sixth Amendment.

Jones, in an effort to circumvent the stringent harm analysis outlined in R oss , asserts that

his conviction must be reversed in accord with Gomez v. United States , 490 U.S. 858 (1989). In

Gomez

, the Supreme Court overturned a conviction on Sixth Amendment grou nds where a

magistrate exceeded his statutory jurisdiction and presided o ver the voir dire of a criminal trial

wit hout the defendant’s consent. I d

. at 876. Jones points out that both he and Gomez were

“convicted as result of the composition of a ju ry based on a procedure other than that to which

each was entitled by law.” While arguably true, the holding in G om ez cannot be read so broadl y

as to mandate a reversal every time a trial error oc curs during voir di re. We note that the

Supreme Cour t reversed Gomez’s conviction, i nter alia

, on the expressed ground that a defendant

has the basic right to have “all crit ical stages of a criminal trial conducted by a person with

jurisdiction to preside.” Id. Because Jones does not contest the jurisdiction of the trial judge to

preside over voir dire, we find Gomez to be inapposite to the case sub judice

.

Following Ross

, and this Court’s holding in Prati , our review of Jones’s Si xth

A mendment claim is limited to whether the jurors that actually sat were impartial. Jones

challenges the erroneous exclusion of an impartial juror rather than the erron e ous inclusion of a

partial juror, and nowhere does he suggest that the actual jury that determined his guilt and

penalty was impartial. We thus hold that the st at e court’s adjudication that Jones’s conviction

should not be reversed pursuant to the Sixth Amendment was not an object ively unreasonable

application of clearly established federal law.8

B. Refusal to voir dire or instruct jury about parole eligibility

Jones next asserts that the trial co urt vio lated his rights under the Eighth and Fourteenth

Amendments b y refusing to voir dire or instruct the jury about his eligibility for parole in the

event of a life sentence. We find that neither claim has merit.

This Court has repeatedly found that “a capital murder defendant d oes not have a

constitutional right to question venire members regarding Texas parole law.” C ollier v. Cockrell

,

300 F. 3d 577, 584 (5th Ci r. 2003) (ci ti ng W heat v. Johnson

, 238 F.3d 357, 362 (5th Cir. 2001)).

It is thus clear that the trial court’s refusal to voir dire the jury abo ut Jo nes’s parole eligibility did

not violate his rights under the Eighth or Fourteenth Amendments.

Jones’s claim regarding the court’s refusal t o inst ruct the jury about parole law must also

fail. In S immons v. South Carolina

, the Supreme Court held that, in states where a defendant is

ineligible fo r paro le if given a life sentence, the Due Process Clause requires an instruction about

parole law at the punishment phase of the tria l. 512 U.S. 154, 156 (1994) (plurality opinion); s ee

also Ramdass v. Angelone

, 530 U.S. 156, 166 (“The parole-ineligibility in st ruction is required

only when, assuming the jury fixes the sentence at life, the defendant is ineligible for parole

under st ate law.”). In line with Simmons

, this Court has held that a parole instruction is

constitutionally warranted only when: (1) the state argues th at the defendant represents a future

danger to society; and (2) the defendant is legally ineligible for parole. S ee

, e.g.

, Woods v.

Cockrell

, 307 F.3d 353, 361-62 (5th Cir. 2002); Whea t , 238 F.3d at 361.

The capital offense serving as the basis of Jones’s conviction occ urred on April 13, 1993.

U n der Texas law governing capital offenses committed between September 1, 1989, and August

31, 1993, a defendant who receives a life sent ence beco mes eligible for parole when actual time9

served equals thirty-five years of confinement. S ee T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42. 18, §

8(b)(2) (Verno n 1993), r epealed by T EX

. G OV ’ T C ODE A NN

. § 508.145(b) (Vernon 1998).

Bec ause Jones would have been parole-eligible if the jury had sentenced him to life in prison, he

enjoyed no constitutional right to instru ct t he jury on Texas parole law. We conclude that the

state court’s dec isio n no t t o reverse Jones’s conviction on the ground that the trial court refused

to voir dire or instruct the jury on parole eligibilit y did not constitute an unreasonable application

of federal law.

IV. Conclusion

For these reasons, the state court’s analysis of Jones’s claims was not o bjectively

unreasonable in light of clearly established fede ral law. We therefore deny Jones’s application

for a writ of habeas corpus.